EB v TN & Ors

This is my judgment in the application brought by EB (formally IEB) against LWB (deceased) and TN for a declaration that LWB is her father.

It is now three-thirty on Friday afternoon and I am giving this judgment following a two day hearing in which I have heard oral evidence from a number of parties.

The parties to the action itself are EB, who is represented by Susan Jacklin QC. The first respondent is LWB (L), who is deceased as of September last year. The estate is represented through his personal representative, EB, known in the UK as EBM. I should say that the estate of L has been represented by EBM, his personal representative today, who has appeared in person having dispensed with legal representation at some point around 27^th November.

The second respondent is TN, who is the applicant’s mother. She has attended court, not represented, and appears in person assisted by an interpreter.

The third respondent is IB (I), who is L’s widow. She has not been present in court. She is represented by Simon Calhaem, counsel, who initially appeared only to make an application to de-join I, ZB, TB and EB, but after I refused that application he has remained in court and has played some part in the course of the hearing, asking some questions and making some submissions.

The fourth respondent is ZB, who has been present in court and he is represented by Mr Calhaem.

The fifth respondent is LB , who has not been present in court and who is not represented. I understand he is in Turkey.

The sixth respondent is TB, who is represented by Mr Calhaem; he has not been present at court.

The seventh respondent is EIB in her personal capacity, rather than as the personal representative of the estate, and she has been represented by Mr Calhaem in her personal capacity whilst representing the estate in person.

In 1977 it is alleged that L (then I think aged thirty-four) and TN (then aged twenty-one) embarked on an affair whilst TN was working for L. As a result, it is alleged that TN conceived a child born on 20^th January 1978; she was called IEB. Her birth was registered showing TN’s husband, BN, as her father and the secret was kept, it is said, by TN for some ten years. L himself was aware, it is said, of the fact that he was IEB’s father and he also kept the secret; in his case it seems for, perhaps, some forty years.

In the late 1980s, BN discovered the affair and that his daughter was not in fact his. He and TN agreed not to tell her, but it caused immense strain and in 1989 they were divorced in Northern Cyprus when BN got custody of E.

In the late 1990s, the alleged secret emerged when E’s older brother is said to have told her in a row that she was not BN’s daughter.

Throughout the early years of this century it is said that E and L had a father/daughter relationship, but E was not introduced to the B family. It is said that various steps were taken to correct the record, but were not seen through to a final conclusion.

Sadly, on 10^th September 2016, after some fairly long term health difficulties, L died. That brought matters to a head because, on 27^th September 2016, E issued paternity proceedings in Turkey along with protective applications to prevent the distribution of the estate. On 26^th October 2016, she issued proceedings here.

The issues which I have had to decide have been summarised in a helpful list of issues filed for this hearing. The principal issue is of course whether L was the father of E. Secondly, and linked to that, was BN validly removed under English law as the named father of EB on the English register of her birth.

Subsidiary and essentially procedural issues revolve around whether EB and LB were validly served with the application; if not, whether the court should make an order under FPR 6.19 directing that steps already taken are effectively good service. Another issue was whether an extension of time should be granted to file a statement. Another was whether the third, fourth, sixth and seventh respondents should be de-joined from the proceedings. Finally, there are issues as to costs which will obviously follow on from the determination of the principal issues.

I dealt with the issue of the de-joinder of the third, fourth, sixth and seventh respondents at the commencement of the hearing and refused that application on the basis that it had been made only on 28^th November and so was made too late both in substantive terms to comply with the rule that applications to set aside without notice type orders should be made as soon as reasonably practicable and, secondly, because applying the overriding objective, there was insufficient time in this hearing to deal with the full merits of an application to de-join within the timescale of this hearing. So on that basis I concluded that fairness required me to dismiss that application.

This litigation is now some thirteen and a half odd months of age. It commenced back in October 2016 when the application was issued out of the West London Family Court on 26^th October. That followed on from the commencement of litigation in Turkey. The application at B1 is in form C63, which is the form seeking a declaration and it sets out at B7: “Why are you making this application?” It says:

“I am the biological daughter of LWB. The evidence in support of my application for a declaration of parentage is in the statement accompanying this form. I wish for a declaration of parentage in order that my birth certificate can be amended. This would extremely assist in my professional and personal life when dealing with formalities.”

As I will turn to later, that represents an incomplete statement of why it was issued but that is what the form said.

When the matter first came before the court, Deputy Circuit Judge Sleeman at West London heard it on 21^st December 2016. A challenge to the court’s jurisdiction was raised by two of the sons - ZB and TB - who doubted whether the court had jurisdiction and asserted that the English court was not the appropriate forum. The matter was transferred to the High Court and came before Mr Justice Peter Jackson in an urgent applications list on 27^th February 2017. At that hearing, Mr Justice Peter Jackson gave directions to take the matter forward to a contested essentially jurisdictional hearing.

It is clear from the order and the position statements that were filed at that point that the issue of jurisdiction to make a s.55A order was thought not to be seriously in issue because the position statement of Miss Foulkes who appeared on behalf of the estate at that point in time did not challenge it, although that was not then reflected in any expressed recital in the order which has led to some uncertainty as to precisely whether domicile of E was accepted or not.

Correspondence in advance of the hearing in January or February (E5 and E11) dealing with the issue went unanswered and I have been told by EBM that that was because her solicitors had not received those letters. In any event, it has left the position slightly unclear to the extent that I consider that I will need to determine the issue of domicile within the course of this judgment.

Further directions were given by Mr Justice Peter Jackson to obtain documents from the Doctor’s Laboratory which had dealt with some DNA testing in 2004. Directions were given in respect of I, ZB, LB, TB and EBM because they were plainly potentially interested parties and so they were to be given notice and, if they wished to become parties, they were to file an application to do so.

The matter then went off for the jurisdictional hearing. It was directed to be listed for one full day with no other cases to be listed before the court that day. Regrettably, Mr Justice Peter Jackson’s intentions were not fulfilled because when it was listed it was unallocated and it came before Mrs Justice Parker towards the end of the day and she made directions which listed the matter for a two day hearing to determine the stay or dismissal application. Some further directions were given in relation to the preparation for that hearing.

On 24^th and 25^th October, the matter came before Mr Justice Holman. E was represented by Miss Jacklin. The estate was represented by Ms Haren of counsel. Following a day’s argument, Mr Justice Holman reserved judgment overnight and delivered a judgment on 25^th October (B33). I have read that judgment and, in conclusion, Mr Justice Holman determined that the case should proceed on the basis that it was not an abuse of process to proceed with the paternity application in this country alongside the paternity application in Turkey and that, on forum grounds, the UK was the more appropriate forum for determining the paternity issue. He gave directions to prepare the matter for a final hearing before me.

It is right to note that, within those directions, it does not appear that any application was made on behalf of the estate to adduce any expert evidence challenging either the DNA results or handwriting expert or any other legal expertise as to the position in Turkey.

An appeal was lodged against that decision by the estate and, on 24^th November, Lord Justice Moylan refused that application for permission to appeal. In the meantime, I had heard an application on 22^nd November whereby the estate sought to adjourn this hearing pending the decision from the Court of Appeal. I refused that application for the reasons set out in the judgment I delivered on that day and, hence, we reach yesterday when this case commenced.

The cases of the applicant and the estate and to some extent the third, fourth, sixth and seventh respondents is set out in either witness statements or in Skeleton Arguments filed by their lawyers or in EBM’s case on behalf of the estate by herself and they have been supplemented by oral submissions and evidence.

I do not intend to rehearse every point that has been made in those documents or, indeed, in court; some of the points were well made, some of them were peripheral - possibly irrelevant to my determination of the principal issues - but were taken because of the heat that this litigation has unfortunately generated.

On behalf of the applicant, Miss Jacklin QC says that, in relation to the service issues, the evidence at C110 shows that valid service was effected out of the jurisdiction by reason of postal service which is made valid by the Hague Service Convention and the 1931 Convention in operation between Turkey and the UK. [See C138,139, 142]

In relation to paternity, very briefly stated, her case is that the totality of the evidence from witnesses, from documents, from photographs and from scientific testing proves paternity. Miss Jacklin QC rejects the attacks on the DNA evidence launched by the estate. She notes that in Elliot v. Radcliffe there was a particular issue connected with the recent DNA testing in that case which caused Mr Justice Holman to adjourn that case, which she says is not a concern in this case. She points to the fact that, certainly, Cellmark are accredited by the Ministry of Justice and that the evidence that is produced by EBM in the form of letters from two experts in the field - in fact goes to suggest that, overall, the DNA testing is reliable.

In relation to an argument which has been raised by the estate in relation to whether they have had a fair opportunity to present their case, she says that in reality it is as a result of their choice that they have not prepared to a greater degree for this hearing - they having been aware of the issues probably for a year, but certainly since July - and thus the absence of expert reports should not distract me from the essential task of evaluating the evidence as it stands.

In relation to the credibility of her client, Miss Jacklin QC says there may be one or two areas where she has not been as frank as she might, but, overall, she maintains that she is essentially a credible witness. She says that E has accepted where she may have been mistaken but that, overall, the criticism of her, she says, in some instances, may have some substance but in others is wildly off target.

In respect of E’s mother, TN, she invites me to conclude that she is essentially independent and reliable.

In relation to the question of the birth certificate amendment, she relies on the correspondence with the General Registry Office to demonstrate that the amendment was made in compliance with the statutory scheme.

On behalf of the estate, EBM has mounted an articulate and in many respects considered attack upon the reliability of the applicant and her evidence. In respect of the paternity application, she says that really neither E or TN are trustworthy witnesses. In particular, in relation to TN, she says that given she misled her husband for ten years, I should dismiss her credibility entirely and that she is really saying what her daughter wants her to say.

In relation to E herself she mounts a more sustained attack on her credibility and points to obvious examples where she says E has not been truthful, for instance the application form where she did not disclose the earlier proceedings in Barnet or in Turkey.

In relation to E, she says that her whole approach has been suspicious, that she has not been frank about her motivation, that she is neither honest or credible and that she says what suits her. She says that the obtaining of a birth certificate from the Turkish Republic is not valid. She questions how she has obtained documents, for instance the copy of her father’s passport and copies of a photograph of her father in the garden. Underlying her attack on credibility is a suspicion that E and her mother have conspired to put forward this claim because of financial motives.

In relation to the DNA evidence, EBM has - on behalf of the estate - made a number of criticisms in respect of the DNA evidence which has been obtained historically in 2004 but also more recently. The essential thrust of her case is that this court should not rely on the DNA evidence. She has referred me to, in particular, the case of Spencer v. Anderson in support of the contention that for legal proceedings the court should be cautious about accepting DNA evidence where there is not robust chain of custody proof available. She points specifically to the Cellmark DNA evidence that there are no records available and so it is not possible to ascertain whether the sampling process was robust and reliable.

In relation to the Barts testing she questions again whether that is sufficiently reliable given, in particular, that it refers to the possibility that a close relative of the father could also be the biological father.

In relation to the Doctor’s Laboratory material, she questions why E did not call as a witness to these proceedings another person who is said to have been a witness to this process. She questions the photographs which are attached to the sampling forms and how they came to be attached and whether they were taken at the time or whether they were somehow obtained by E through other means. She questions why her father would not have given his home number or his mobile number on those forms rather than a friend’s number. She notes that these are old DNA tests and that their processes and testing have probably improved since then and she refers me to the reports of Dr Davey and Dr Taylor in support of her argument that I should treat all of that evidence with some caution.

In relation to the birth certificate, she says that the GRO form and the birth certificate forms are also questionable and she doubts that her father would have signed forms in relation to the proposed change of E’s birth certificate. But she questions whether the original change to the birth certificate was valid as well and she relies on what she says is a questionable process as to how E obtained a birth certificate in the Turkish Republic of Northern Cyprus.

The overall thrust of the case on behalf of the estate was tinged with a suggestion of conspiracy and is, I think, really more accurately summarised as being putting the applicant to proof of her case by raising question marks in relation to all of those issues to do with credibility and reliability.

Mr Calhaem on behalf of the third, fourth, sixth and seventh respondents added some support to the estate’s case. He drew my attention to issues related to the credibility of, in particular, E - but also to some extent TN - referring in particular to the question of non-disclosure on the application form, but also the statement made in the Turkish proceedings that the applicant was domiciled in Cyprus which was in flat contradiction to her assertion in her application form that she was domiciled in the United Kingdom. He overall submitted that EB was plainly a credible, frank and honest witness in contrast to E and TN who he submitted were not.

In the course of the hearing there was little reference to the legal framework within which I am working, but I will set it out as briefly as I can.

The declaration of parentage is, of course, governed by s.55A of the Family Law Act which came into effect in 2001.

As Mr Justice Peter Jackson observed in Spencer v. Anderson [2016] EWHC 851, “If a case is brought, the court must hear it” and “If there is narrative evidence, that would doubtless enable a conclusion to be reached on the balance of probabilities. However, DNA testing would answer the question of parentage with near certainty and would in effect determine the outcome”.

This approach is mirrored by that of Mr Justice Holman in Elliot v. Radcliffe [2013] EWHC 806 (Fam) where he noted that the standard of proof on such an application is the balance of probability, but the court has to be satisfied as to the accuracy and reliability of what it is declaring and that a declaration of parentage is a solemn act which is binding.

The issue of parentage is now very often resolved by DNA testing. In the context of informal determinations away from the court arena, no doubt sometimes DNA testing is undertaken in some less formal ways particularly in terms of the chain of custody procedures adopted. That might result in those chain of custody issues and procedural integrity issues being somewhat more relaxed. In other cases, particularly within the criminal courts but also when scientific testing is directed by a civil court, the integrity of the process will be a very significant feature in the court’s decision.

In analysing historic DNA testing which has been carried out in advance of the court process and which has been done voluntarily, the court must of course be alert to the issue of whether it is reliable in particular the integrity of the process by which it was carried out. That caused Mr Justice Holman in the ‘Elliott’ case to adjourn the application because the procedures adopted left a vacuum of uncertainty about who the samples might have been submitted from. As with most issues, the extent to which any identified flaws in the process or gaps in the documentary record arising from passage of time or otherwise has to be set in the context of the rest of the evidence and the court must evaluate the DNA evidence to see if it is prepared to rely on it in the context of the totality of the evidence.

As I have said, because there has not been an express concession in relation to jurisdiction the court will need to determine that issue. The law in relation to domicile has been considered by this court and the Court of Appeal in a case recently namely Sekri v Ray [2014] 1 FLR 612 and in the Court of Appeal [2014] EWCA Civ. 119. In that case, both the Court of Appeal and Mr Justice Holman adopted the summary of the law given by Lady Justice Arden in Barlow Clowes International Limited v. Henwood [2008] EWCA Civ. 577. The general principles of law governing domicile are therefore these:

The issue of habitual residence was considered in Marinos v. Marinos [2007] EWHC Civ. 2047 and Mr Justice Munby (as he then was) determined that in respect of adults the court should apply what is called a “centre of interests test”.

Section 29 of the Births and Deaths Registration Act 1953 sets out the procedure as follows:

“Correction of errors in registers

(1)

No alteration shall be made in any register of live–births, still–births or deaths except as authorised by this or any other Act.

(2)

Any clerical error which may from time to time be discovered in any such register may, in the prescribed manner and subject to the prescribed conditions, be corrected by any person authorised in that behalf by the Registrar General.

(3)

An error of fact or substance in any such register may be corrected by entry in the margin (without any alteration of the original entry) by the officer having the custody of the register, and upon production to him by that person of a statutory declaration setting forth the nature of the error and the true facts of the case made by two qualified informants of the birth or death with reference to which the error has been made, or in default of two qualified informants then http://www.legislation.gov.uk/ukpga/Eliz2/1-2/20 - commentary-c3526811 by two credible persons having knowledge of the truth of the case.”

Section 29A does not apply in this case because there was no judicial finding upon which the application to vary the birth register was made.

My Factual Analysis and Evaluation

In reaching my conclusions I have considered the evidence contained within the court bundle - including the additional statement of EBM, which I gave permission to file out of time - together with additional documents which have been produced in the course of the hearing including photos produced by the applicant, photos produced by EBM including photocopies of passport of her father and the screenshot of the garden, further copies of documents from Cellmark dealing with DNA testing in 2017 and a copy of airline tickets. I have also had the benefit of seeing the originals of many of the documents in dispute for instance the birth certificate, the GRO form and documents from the DNA testers.

I have heard the oral evidence of E, TN and EBM and I have considered the written and oral submissions made on behalf of E, EBM and the third, fourth, sixth and seventh respondents.

Although credibility of the witnesses is very much an issue between the parties particularly in respect of the applicant and her mother, much of the evidence that I have considered is documentary in nature and thus not really susceptible to a challenge in respect of its truthfulness although the documentary record is very much in issue in terms of its reliability in particular: is the DNA testing sufficiently robust in the procedures to verify who was being tested? Is the GRO form sufficiently reliable in terms of its signature?

There is obviously an interplay between the credibility of witnesses and the documents. If the witnesses are considered to be generally trustworthy then it follows that the documentary evidence is likely to be. On the other hand, if the witnesses are not generally trustworthy then the documentary evidence may not be reliable. Of course, that process can be reversed. If the documentary evidence appears reliable then that may corroborate the evidence of a witness.

Insofar as matters of fact are in dispute, I only need to determine them on the basis of the normal civil standard namely whether it is more likely than not that a matter occurred or did not occur. I take account of all the evidence that I have heard and place it in the context of other evidence. To the extent that lies have been told, I give myself a Lucas direction and remind myself that people may lie for many reasons and that just because they demonstrably lie on one issue does not mean that they have lied on all others.

In evaluating the parties’ credibility I have regard to the totality of their evidence, how it fits in with other pieces of evidence, how consistent it is internally and with other items of evidence and whether they have a motive to lie. I also take account of how they gave their evidence.

This is not ultimately a case where the benefits of seeing the parties or hearing them giving oral evidence has added substantially to my overall understanding of the issues of the case, although it was of some assistance in some ways. As will be seen from my analysis below, I do not consider either E or EBM to be wholly reliable or wholly unreliable as a witness. For both of them, too much is at stake.

For E, it is getting certainty as to her heritage and recognition of her being L’s daughter; however, there is undoubtedly a financial motive in play too. Aspects of her accounts were not convincing and I am satisfied that in some respects she has not been truthful. The application form and her non-disclosure of other proceedings being perhaps the most obvious example. What she said about domicile causes me to doubt whether she was being completely frank about that. Some of her evidence about the extent of her relationship with L, I am not satisfied was the complete truth.

However for EBM, she clearly carries a huge burden of anger and frustration at E. I suspect she is transferring some of the anger that she perhaps ought to feel at her dead father to E and she clearly feels a huge responsibility to the estate and to her mother and her siblings in many ways in respect of family pride and the family finances. She is an intelligent and articulate woman. She was at times open and honest and at other times she was argumentative, she sought excuses for unpalatable aspects of the conduct of the litigation. She blamed her lawyers on occasions for flaws. She blames E for the situation rather than her father. She was unable to accept that, if what she wants to know is really the truth, there are ways of doing it which would avoid exhuming her father. That both she and E are prepared to exhume L shows the extent to which hostility and the protection of family and money has obscured the ability of both E and EBM to be really objective is not a surprise given the nature of the case.

That they have lied or been less than frank on some aspects does not though in my view make them wholly unreliable. They fall classically into the Lucas category where I feel sure I can rely on them in some, indeed most, respects, but not in some other limited areas.

In respect of TN, I thought she was essentially honest. She answered questions as directly as possible allowing for some linguistic issues. She came across as a rather passive individual, someone who events occur to rather than who influences events. She was, I thought, visibly emotional in respect of L and I believed her when she talked about their relationship and how she felt about him. I thought her generally to be reliable as to the overall background.

As I have said inconsistency is a central theme of the estate’s case; that I should not rely on evidence because of inconsistency in particular in E’s account. Of course inconsistency can be an indication of a lie being told. However, that is far from the only inference that can properly be drawn from an inconsistency. EBM would say that inconsistency in this case equals a lie, but it is well recognised that memory is imperfect. The brain is not an instrument that recalls everything as it was and maintains that record in perfect condition over time. Even within minutes of an event different people will recall it slightly differently and, as time passes, memory fades and events are reassembled. People can quite genuinely and honestly recall something which is different to objective reality; that does not mean they are lying. It does not necessarily mean they are exaggerating or deliberately filling gaps. It may mean either or both. But in determining what is behind an inconsistency, one has to consider the bigger picture. It may simply mean that with the passage of time and events the memory has created an imperfect picture.

With issues connected with DNA and chain of custody or other testing integrity issues, EB says that if there is a query over it I should reject the evidence. Even in a criminal trial where reasonable doubt over a test might result in an acquittal, a problem with testing integrity would not necessarily create reasonable doubt. In a civil matter where the test is more probable than not, the position is even less binary.

In looking at testing evidence and testing integrity, I must consider the totality of the evidence as it all fits together and relates to other evidence. As in a shaken baby case the court must look at all elements not just scientific or medical but witness testimony, contemporaneous records, and add in a degree of common sense and judgement to evaluate the sum of the whole, not merely the component parts.

I think that both EBM and E are fundamentally decent individuals who are truly victims of a situation not of their making and over which they have, until recently, had relatively little control and have been let down by the people really who they should have been able to repose complete trust in. In EBM’s case, by her father; in E’s by her mother and by L.

I have little doubt that E’s motives are mixed as EBM says. I think the originating application when it stated that it was to resolve issues to do with her heritage was far from the whole picture, but I do believe her impassioned statement from the witness box - almost a plea to her siblings - to understand her need to make sense of her past and to create some certainty for her going forward personally but also for any family she might have. However, if that were the only motive then there would be no need to claim against the estate in Turkey and so I believe there is also a financial motive.

Perhaps in that regard E feels that it is her birth right and so there is a moral element to that financial claim. She has no claim on BN’s estate and if L is her father, given the raw deal he served her up in fathering her and then in not acknowledging her and providing her with fathering, perhaps she feels morally entitled to claim as well as there being some element of personal gain. The reality is though that her claim form was disingenuous in stating why she wants this declaration. The reality is far more multifaceted and nuanced.

I believe the family’s motives in opposing the claim are also more mixed; it is certainly not just a position of the estate and the children and widow of L trying to protect their father’s accumulated wealth. I think for them the refusal of a declaration would represent a vindication of the man they had believed their father to be, a faithful and trustworthy husband and father. In particular for I, but I think also the children, a refusal of the declaration would stabilise the foundations on which their worlds have been built. It would give them that clarity and remove the problem both of them having to reappraise their past and their father in particular, but also remove the issue of how they deal with a new sister if that is the fact. How do they deal with her emotionally, but how do they deal with her also practically in terms of litigation of the estate.

That being said, there is of course a financial motive in tandem with that. The children’s shares in the estate would be reduced from a quarter each to a fifth, but I think there is perhaps also a reflexive defence of the father’s estate which they may see as an interloper with little claim on their father other than perhaps biological, making a claim which they consider unjustified.

To fully understand all that has happened in the past and to fully test all of the evidence which has been or could be placed before the court a host of witnesses dating back some forty years would be needed. A raft of experts could be instructed to reanalyse DNA to assess the processes which were undertaken to analyse handwriting samples. That would, I think, be unproductive. It would take a disproportionate amount of time and would be hugely expensive. But in reality I do not think it would add very much to the overall picture which does emerge. It feels like looking through an old family album with pictures missing here and there, pages torn out, photographs removed or lost or never taken. But ultimately, for me, a clear enough picture has emerged from what I read and heard. Some areas are blank or smudged, but I think the overall story of this family can ultimately be discerned, sometimes with startling clarity.

I start with the birth of LWB, who was born on 1^st January 1943. It seems he went into the clothing business. He moved to England and set up a factory here, and over the course of his life he also pursued business interests in Turkey as well.

On 31^st August 1950, BN was born. He went into the restaurant business.

On 12^th June 1955, TN (formerly N) was born. She is a dual national of the Turkish Republish of Northern Cyprus and she is also a national of the UK.

I am not sure when L and I married, but TN and BN married in 1971. I suspect that L and I must have married before then because in 1971 their eldest child, ZB, was born followed in 1973 by LB.

On 14^th March 1973, TN and BN had their first child, NBN, who was born in England.

In 1976, TN started to work at a clothing factory owned by L. She was then twenty-one and he was thirty-three.

At the end of 1976 TN says they commenced an intimate relationship and, having heard her give evidence about that and seen how she responded to questions about L, I am satisfied that she is telling the truth about the fact that they did commence an affair. Both of them were married.

In 1977, TB was born and so it would seem L was having an affair with TN whilst I was pregnant with TB and when he was a tiny baby.

In March or April 1977, TN discovered she was pregnant. She says L was supportive and interested. In her statement (C102), she says that she knew it was L’s baby because she was having a regular sexual relationship with L at that time - three times a week I think she talked about - and that she was only very rarely having any sexual contact with her husband.

In her second statement, she says that she was only having sex with L at the time which appears to be in contradiction to or inconsistent with her earlier statement. In her oral evidence, she was tested about this. My overall impression is that she was regularly having sexual relations with L but having very rare sexual contact with BN, but enough to mean that when she fell pregnant he was not immediately on alert to the fact that the child could not be his. I do not believe that she was lying about this; it is one of those examples of an inconsistency which I do not think indicates a lie.

On 20^th January 1978, the baby girl was born and called IEB. TN says that L visited her in hospital and brought her a purple plant and that he commented on how the little baby resembled him.

In 1981, EBM was born to L and I.

In 1983, TN says that she returned to work for L. She says that she had taken E to see him and that he acknowledged her as his daughter. She says that he, on a couple of occasions, said to her “You are my daughter”. E, herself, said that she had a recollection of this, although whether it is a genuine recall from her childhood or whether it is part of the family folklore, I cannot say. It may be one of those examples of her recounting something which may not necessarily derive directly from her memory. But I think it is likely that she was taken to see him and that he may well have referred to her in that way.

In 1987, BN discovered the affair when he overheard TN and L talking and he was told that E was not his child. Both he and TN say that DNA tests were done at the Whitechapel Hospital, but no record of those exists. But both BN and TN say that they confirmed that he was not E’s father. They decided not to tell E, but to continue to let her believe that BN was her father and so the conspiracy of silence took a further step down a path which has led us to where we are today.

In 1988 TN and BN took their son - who I think must have been a teenager by then - and E to Cyprus to see if they could make their marriage work in Cyprus.

In 1989, it having irretrievably broken down, they divorced in Cyprus. For reasons which I do not fully understand, BN got custody of both of the children. TN told me that was by operation of law in Cyprus that the father was automatically granted custody. Whether there was any element connected with that related to behaviour or misbehaviour by the mother, I simply do not know. But the net result was that BN was granted custody of a child who was not his biological daughter.

TN returned to the UK. In 1992 BN, his new wife and the two children returned to the UK.

In 1997 or 1998, NBN- that is the son rather than the father - told E that she was not his full sister and that BN was not her father. The mother then told her that that was true and told her that L was her father.

On 25^th February 2000 (and here we get into some of the documentary evidence), E completed the statutory declaration (C6) and changed her name from IEB to EB. That is some seventeen and a half years ago that she made the choice to adopt the name of By and to reject the name of Bi.

In 2003, she went to study in Australia and remained there for some time studying. Whilst she was there, in 2004, further documentary evidence and indeed scientific evidence comes into existence. It seems to have been precipitated by the fact that at this time L himself was very ill. He eventually had a quintuple heart by-pass operation. The undertaking of DNA testing at that time would be consistent with him being conscious of his mortality and wanting in some way to take steps to set the record straight for the purposes of history were he to not survive the operation.

In any event, on 14^th May Cellmark undertook DNA testing with L, TN and E. E and TN went to the North Middlesex Hospital to give samples. The documents are contained within the bundle at C10 and in section D. Samples were taken from TN and E on 10^th May 2004 and were taken from an individual who identified themselves as L on 11^th May. The probability of paternity according to Cellmark was 99.999%. The subsequent enquiries with Cellmark revealed that the documentation had all been destroyed, but they said that the identity of those giving the samples would have been confirmed by taking passport photos to the sampler who would have cross checked them with the person attending before them.

As I said earlier, the estate challenges the reliability of the testing overall and they refer to the reports of Dr Davey and Dr Walker. Those reports essentially say that the test results are likely to be correct, being carried out in industry standard ways and with an accepted science underpinning them. What they raise is how robust the chain of custody process is; can we be sure that the persons giving the samples were who they claimed to be? They note that Cellmark is accredited and so works to high standards. Dr Walker says there is a strong reassurance that their processes are robust enough to have the highest confidence in the findings and that there is no obvious reason to disbelieve the findings. Dr Walker says that if there were process issues one would expect them to have been identified and dealt with by Cellmark at the time.

On 21^st May 2004 further samples were taken, this time at what has become The Doctor’s Laboratory. They took samples from L (D26-D29a) and from E (D14-D17). Those were taken at Wimpole Street. The Doctor’s Laboratory have retained and provided copies of the sample forms and photos provided by them. The photos clearly show E and her signature in a number of places. Those samples were taken by an individual called Ania Moroz. In respect of L, they show photographs of L - two different photographs - one of which has a clear marking on it which shows that it was taken to Wimpole Street rather than being taken there. The sample forms also bear a signature which is said to be L’s and E of course gives evidence saying that they were both present.

The estate questions whether the photos are enough to enable the court to rely on those samples as actually having been taken from L. They say that E has obviously lied about how they were obtained because they cannot have been taken at the clinic because one of them bears the stamp of a photo shop. They question why L would have provided the address of his factory and a friend’s phone number if it was indeed him, so they invite me to conclude that I cannot rely on those sampling forms to prove that the individual who provided the sample was in fact their father.

On 28^th May, the report was received back from The Doctor’s Laboratory or Cytogenic DNA Services (as it then was) (C11). It says that, in the absence of maternal DNA, this result provides significant evidence to indicate that L is the true biological father. It is right, Dr Walker notes, that that organisation is not accredited, but also notes that the presence of the sampling declaration forms is supportive of the reliability and he says, again, there is no reason to disbelieve the findings. Again, he makes the point that if the laboratory had problems with the chain of custody, one would expect them to have been raised then.

On 2^nd June, a report was received from Barts and the scientist responsible, Dr Syndercombe. E, again, says that she was present when the samples were taken. The report concludes that there was a 99.96% chance of L being E’s father provided a close relative, such as a brother, is not considered as a possible father. The letter says that this is virtual proof of paternity.

Dr Davey says the material in terms of identification and sampling in the case of the Barts test is reasonably extensive, but, there is nothing, she notes, which proves that their identity was verified when giving the samples. Dr Walker says Barts is accredited and one would expect the necessary checks would have been done and there is no obvious reason to disbelieve the findings.

I think it was at some point subsequent to that that L had his quintuple heart bypass surgery and things then go quiet in terms of the evidence trail until we get to August 2008 when a process starts with the General Registry Office in relation to the amendment of E’s birth certificate and the correspondence with the General Registry Office is set out in section F, in particular, from F41 onwards

On 8^th September the General Registry Office wrote to TN confirming that she was willing to complete a declaration in relation to the amendment and it set out how a statutory declaration would be made.

On 7^th October 2008 the General Registry Office acknowledged receipt of TN’s statutory declaration (F41H). In that letter it notes that, as neither Mr N or Mr B are available, a DNA tester should make the other declaration (F41H).

On 15^th October Cellmark confirm that they would provide a statutory declaration.

On 27^th October the General Registry Office sent out a statutory declaration for Cellmark and on 9^th December 2008 that was returned.

On 29^th January 2009, the General Registry Office wrote to E to confirm the birth register would be corrected and the birth certificate which is produced as a result of that correction is now exhibited at C8. That records the basis of the variations which were made which were limited to removing the identity of the father as BN. Having seen the original, I see no reason to doubt that those corrections as recorded on that original birth certificate were carried out by the Superintendent Registrar. Having seen a statutory declaration made by TN and Melanie Beard (but I am not entirely sure who Melanie Beard was), but that process was completed in early 2009.

On 20^th March 2009, a Form GRO185 is said to have been completed. When the GRO185 was completed it is said by E it records the details of the child’s natural father as LWB, an address in Istanbul being given, and the children’s mother being TN, an address in Wood Green is given. It is signed in the declarations part of the form by TN on 20^th March 2009 and it bears a signature likewise on 20^th March 2009 which is said to be L’s signature. The declarations read: “Any person who deliberately gives false information for the registration of a birth may be prosecuted” and, in respect of the mother and the father, “I have read the warning and declare that I am the natural father of the child named”.

That form was not followed up by a statutory declaration which would have been submitted to the General Registry Office to enable the register to be further amended to include L’s details as the father of E in replacement of BN who had been removed. The reason why it was not followed up is not clear. The estate would say it was not followed up because L was not the one who was doing all of this and he would never have filed such a declaration.

At this time, E had completed her studies and was in the process of joining the United Nations. She says that, for the purposes of her employment, the UK is identified as her base.

In December 2009, she applied to the Barnet County Court for a declaration under s.55A but the process did not really get off the ground because neither L nor BN could be served with the process. I have seen some of the documents from Barnet which seem to support that.

In 2010 E bought a flat in London. In 2011 to 2013, she was based in New York at the headquarters of the United Nations.

On 21^st February 2013, she bought a home in London at 263 Great Cambridge Road where TN now lives. E says that she took her mortgage with Barclays which was also her personal bank.

In February 2013, L underwent a kidney transplant.

In May 2014 E was deployed to Lebanon, where she rented an apartment and had a bank account for payroll purposes. She says she visited Cyprus frequently from the Lebanon and stayed with an aunt when there.

In January 2016, she says she saw L for the last time. Subsequent to that, they had an argument about prosthetics because by this time L had had two amputations - one in relation to his foot and one in relation to his hand.

EBM suggested in cross examination that L had blocked E from his phone and that was why there was no contact. I am left wondering how this would be known if the family did not know of E’s existence at that time, but, on the other hand, I am fairly sure that they did not know having heard from EBM so I do not know what the explanation for that is. But that, I think, was the last time E saw L before he died.

She has produced a small clip of photographs which she went through which start with both her and L looking young and seem to be consistent with them being taken around 2005 in Istanbul, as she says. There is another with them looking even younger in what is said to be 2000 at the Palm Beach Casino. A series of other photographs span the years from 2005 through to 2015. By 2015, both of them are looking older and L has aged considerably. In 2015, there is a photograph of E with L taken in a mirror in a lift said to be in a hotel in Antalya.

One of the photographs which has caused some controversy, and again is part of the estate’s case that E is unreliable and indeed dishonest, shows L sitting in the garden of the family home in North London. It is taken in around 2015/2016 and L is wearing orthopaedic boots. E says she was sent this by her father and EBM says it was sent by her father to his carer in Turkey and that somehow E has got hold of it and produced it saying that it was sent to her.

I am not sure what E would gain by producing that dishonestly, given the other photographs which show her and L together whereas the photograph of L in the garden is of him alone, but I suppose it illustrates the level of distrust that a photograph which shows nothing of any real consequence in the case can generate. Overall, the photographs illustrate what seems to be a relationship between L and E which contains a degree of warmth and familiarity which could of course be consistent with simply being a close family friend but equally could be consistent with her being his daughter.

In September 2016 L, sadly, passed away; and perhaps even more sadly, within sixteen days of his death proceedings were underway with a paternity suit and protective applications being taken in Turkey. Within that, very quickly, the dispute emerged with the estate filing a document with the Turkish Court (F9) in which it said the claimant must file the paternity suit in the UK to obtain a paternity ruling under English law and if she is able to establish affiliation then bring an action in Turkey for recognition and enforcement of the English ruling. E obviously opposed this on the basis that the paternity suit provided the locus for her to bring an action against the estate, but then within five days proceedings were issued in England and so thus a twin process of litigation has been in train in Turkey and England ever since.

In February 2017 BN flew to England - I have seen those flight tickets. On 28^th February further DNA testing was undertaken in respect of BN. The documents in relation to that (C89A-C91A) include an email from the sampler saying that he took the samples; that he took electronic photographs of E, TN and BN and attended at 263 Great Cambridge Road to do so.

In respect of BN, himself, there are a couple of photographs in the papers which suggests that the individual who was sampled in March of this year was indeed the BN who was married to TN. For what it is worth, again, the signature which appears at C91B appears similar to that on his passport, although that is perhaps of limited relevance.

On 7^th March the Cellmark report concluded that BN is not the biological father of E and BN has signed a statement confirming this.

Over the course of 2017, as I say, the litigation has been ongoing in Turkey and in England. On 9^th June the Turkish Court rejected the estate’s application for a stay of proceedings there and so the Turkish paternity suit has continued and enquiries are underway in Turkey with the Turkish Judge seeking, in particular, to establish the legitimacy of the amended birth records which removed BN as E’s named father. I think the Turkish Judge has made approaches to the British authorities in Turkey and perhaps Northern Cyprus to further that process.

A hearing took place in September and a further hearing is listed in Turkey in December 2017 when further steps will be undertaken there to progress, in particular, the paternity suit.

As I have already mentioned, on 25^th October Mr Justice Holman made his decision. On 26^th October service was effected by post on I, EBM, ZB, TB and LB; LB and EBM, of course, were out of the jurisdiction.

On 2^nd November I and TB wrote acknowledging service in the non-technical sense, I think, and at around this time E herself was reassigned to New York and she then re-instructed solicitors.

On 10^th November Colman Coyle wrote on behalf of ZB, LB, TB and EBM to her solicitors saying that they would not participate in this hearing and saw no point in them being joined and I have already set out earlier the history of what happened between October and now.

Stepping back for a moment from all of that detail, what are the explanations for the evidence as it currently stands? One is that the truth is that L and TN had an affair as claimed, had a child and concealed their secret to avoid the pain and perhaps difficulties in their lives that such a revelation would inevitably have led to. That when the truth of E’s paternity was disclosed that BN disowned her and that L acknowledged her and made incomplete attempts at making amends by undergoing testing by filing some documents and by having a relationship in secret with her.

An explanation for the timing of the DNA tests is, as I have already said, that he was conscious of his mortality and wanted in some way to set the record straight and do right by E. When he recovered he did not see it through, which perhaps is consistent with a previous failure to openly and completely acknowledge the mistake he had made; that he simply still could not bring himself to face the consequences with his wife, his children and his community. An explanation for her not making contact because to do so would, to her knowledge, have caused immense difficulties for the man she believed to be her father.

An alternative explanation, and as I have said earlier this tacitly underpins the response of the estate, is that this is somehow a conspiracy by E to grab a share of a rich man’s estate; that the DNA tests did not take place or are fakes; that another person substituted themselves for L on each of the tests and had documents in L’s name and looked sufficiently like him to pass himself off and fooled testers into accepting him on three occasions; that E and TN have immersed themselves in a story which has lasted for twenty years and involved them taking steps over seventeen odd years in pursuit of a charade effectively that identifies L as E’s father when he was not and on the conspiracy theory must have been known to them that he was not, but they wanted to name him.

What other explanations are there? Some could be constructed, but it does not require one to entirely endorse either of those explanations for me to determine the issues. I do have to take account though of the points made by the estate as to the reliability of the witnesses, but also the DNA evidence.

So what are my determinations? Firstly, on domicile, I am satisfied that the applicant had a domicile of origin following her birth in the UK and that that domicile of origin was the UK. The individuals involved in her life at that time being her mother, the man married to her mother and who took the role of her father and L - who is said to be her biological father - were at that time all largely based in the UK. TN, the one who has been her primary carer in her early life, was based here and so I am satisfied that at her birth her domicile would have been the UK.

I do not consider that her history over her life has established a change in the domicile. She has lived in England for significant periods. She has lived in the Turkish Republic of Northern Cyprus, she has lived in Australia, she has lived in New York, she has lived in the Lebanon and all of those have been to some extent temporary and indefinite. What she has done is to purchase property in England, she has maintained a strong connection with England in terms of property, bank accounts and family and so I do not think that her domicile has changed from the date of her birth.

It is right to note that the document filed in the Turkish proceedings does identify her domicile as being in Cyprus. I observe that the document is a Turkish translation obtained by the family, but there is no particular reason to suspect that it is an inaccurate translation and Mr Calhaem and EBM both say that that document uses particular terms to identify particular issues and so it probably is right that that document does use the word “domicile” in respect of E. Whether the use of the word “domicile” in Turkey is the same as it is in England I do not know, and so it may not be terribly relevant.

The reality is that she has had residences in a number of countries and residence is an entirely separate concept, both legally and factually, to domicile. A person can have residences in many places and in some countries one has to register a residence, but that does not dictate a domicile nor does citizenship dictate a domicile. So overall, although in one document it does say that she was domiciled in Cyprus, I actually cannot see that there would be anything about her life to date which would fix her domicile there either in terms of her having a residence there still less it being a permanent or indefinite residence in Cyprus.

In addition, in any event, it seems to me that, if one looks at habitual residence for the year prior to the issue of the application, the facts set out in the chronology indicate that her centre of interests, if it is anywhere, is in England. That is why her base is identified with her employers as England, that is why she owns property here, that is why her mother is here. They are all features of a centre of interests which is in the UK, notwithstanding that she may at times be resident in other countries. So the jurisdictional foundations for the declaration are established.

In respect of the main issue, paternity, I consider that the combination of the following evidence establishes that L was E’s father. It is established easily on the balance of the probabilities, but I go beyond that to say that I am sure that L was E’s father. Those factors are:

The totality of all that evidence dating back to forty years ago but more particularly in the twenty years since BN made the disclosure to E; based on memory, it is based on official documents, it is based on scientific testing, it is based on interactions of individuals and actions that they took which led to the creation of a paper trail. They all point to the certainty that E was the product of an affair between L and TN which was kept hidden from their families for perhaps obvious reasons. This is not a determination just on the balance of probabilities, but, in my view, it is a determination beyond any reasonable doubt that L is E’s father.

I appreciate that EBM and the other children and I may struggle to believe that he could do this and that is one of the reasons why EBM said that they challenge this - they simply did not believe that their father was a man who could do this - but the evidence objectively viewed overwhelmingly supports the conclusion that he did. No doubt he kept it well hidden, what man would not? It takes probably an extraordinary individual to admit to an affair with one of his workers whilst his wife is pregnant with one of his other children and, despite what EBM said about her father being a brave and strong man - which I am sure he was in many ways - he obviously was not strong enough.

Perhaps that is unfair to him, perhaps he thought it was for the best; that it was too much of a burden for his wife and children. Perhaps it was a mix of fear as to the consequences and not wanting to hurt his wife and other children by visiting upon them the consequences that would inevitably have followed that disclosure in the way that TN and BN split up and that undoubtedly had consequences for the children. So of course the risk for L and his family would have been separation with all the heartache that that brings.

But all of the criticisms that the estate in a sense, in some respects, properly raise in relation to the evidence or perhaps not surprisingly raise - given what I have said about the impact this has for them - about chain of custody issues, about questions over signatures, about doubts and suspicions - I understand why they are raised, but the evidence overall is clear. The samplers would have been sufficiently robust to satisfy themselves that it was L. For what it is worth, the signatures which are said to be L’s seem to bear a resemblance to official documents which are his.

EBM says, well, if this was the case, why did E not do anything before? Why did L not do something? I think the answer to that must be that L did not want this disclosed and who was E to go against that and to impose herself on his family and to blow his world apart - in particular from 2000 onwards - certainly 2004 onwards - when his health was self-evidently deteriorating. Perhaps it would have been difficult for her to contemplate anyway and to reveal one’s self as a sibling to an established family unit is inevitably going to be difficult and would have consequences which are very difficult to predict.

So I do not accept that the points made by the estate in any really significant way undermine the inevitable conclusion that comes from the totality of the material that I have considered. The picture which emerges, having considered that family history, is one which I am quite satisfied has true clarity to it.

In relation to the birth registration issue, the letters and exchanges with the General Registry Office show that a proper procedure was adopted and followed and therefore the entry made to the register clearly was lawfully made in accordance with the requirements under the Births and Deaths Registration Act. It lawfully corrects the register so as to no longer show BN as E’s father.

In relation to service in terms of EBM and LB, EBM is here and LB has instructed solicitors and made an application. In terms of whether valid service has been effected under the 1965 Hague Service Convention and/or the 1931 Convention on Legal Proceedings, the combined effect of the citizenship of EBM and LB and the provisions of the Convention which allow service on an individual in Turkey by a method prescribed by the law of the nationality of that individual is enough to satisfy me that service can be effected on EBM and LB in Turkey by post. The fact is, of course, that in reality both have now participated in the proceedings and so, in any event, because of that it would justify a direction, in my view, under FPR 6.19(2).

The orders that I will therefore make will reflect those conclusions. The declaration of paternity will be made. Insofar as it is necessary, I will affirm that the amendment to the birth register was lawfully carried out. I confirm that service was validly effected and an order will be drawn accordingly. If necessary, indeed irrespective of whether the parties consider it necessary, I think judicial liaison with the court in Turkey ought to be initiated. I think every step possible should be taken to minimise the possibility of friendly courts reaching competing decisions. Turkey is a member of the Council of Europe, a signatory to Hague Conventions, and I would very much hope that through the office of the Head of International Family Justice that some process can be set up to initiate liaison to the extent that is permitted so that we can try to dovetail the proceedings in both jurisdictions.

As a post-script the background to this application and the way the case has been litigated and the dynamic in court all too graphically illustrate the terrible personal costs paid by everybody involved, but particularly children, when parents embark in extramarital relationships which lead to the conception of a child and when secrets lie hidden for decades. For one sister to be saying to another sister across my court that she has burnt her bridges when really they have never spoken to each other and when EBM herself said that, when she was a little girl, what she wanted was a sister, is a tragedy. The pain and anger that has been revealed in court over the last two days is undoubtedly only the tip of a huge iceberg of the emotional cost that L and TN’s infidelity has led to. That cost has been paid by all concerned. As to the wider family, I hate to think of the impact it has had on I and L’s children. The impact on EBM and E has been only too evident to me over the last two days.

It may be a forlorn hope, but I hope that some way can be found to enable the siblings to overcome the situation that TN and L have left them in. The children have been very badly let down by L and TN. It must for EBM and her brothers and for I - I think visibly for EBM - cause them to question much about their father that seemed certain.

Being able to stand back from it TN and L are like everybody else, fallible human beings. That they failed in this aspect of their lives does not mean that everything else about them was bad or that everything else was false. The experience of this court is that humans err, people make poor choices. Sometimes that creates a momentum which builds until it is way beyond anything they could have contemplated and way beyond their ability to control. We are now forty years down the line from mistakes made by L and TN. Perhaps they would make different choices with the benefit of hindsight as to what they did, as to how they responded to E’s arrival.

I hope that following this judgment some measure of resolution for each family, some measure of conciliation may be possible. That is of course entirely in your hands now. That is my judgment.